Changes to Georgia’s Mechanics’ and Materialmen’s Lien Law

Effective March 31, 2009, several substantive changes to Georgia’s lien law went into effect. These changes affect not only the lien claimant (the person filing the lien) but also the owner of the property subject to the lien. Following is a brief summary of some of the changes:

The deadline to file the lien has been changed from 3 months to 90 days. This should eliminate much of the confusion that the old deadline caused.

The deadline to file an action to perfect the lien has changed from 12 months to 365 days. This, too, should eliminate much of the confusion practitioners encountered when calculating important deadlines. Under the new law, a lien may be perfected by litigation, binding arbitration, or filing a proof of claim in a United States Bankruptcy Court.

The deadline to perfect the lien is now calculated from the date the lien is filed rather than the date the last work was performed or materials provided.

A notice of commencement must be filed with the Superior Court Clerk 30 days after the action is filed to perfect the lien rather than the previous 14 days.

The claim of lien form must contain a notice that the lien will expire and become void 395 days from filing if no notice of commencement is filed within the applicable time period.

The claim of lien must contain specific language notifying the owner that they have the right to contest the lien.

A copy of the lien must be sent to the owner or contractor no later than 2 business days after the claim of lien is filed via certified mail or statutory overnight delivery. Previously, mailing had to occur at the time of filing.

Significantly, the property owner or contractor may file a Notice of Contest of the lien in the Superior Court to shorten the time within which a lien claimant must perfect the lien. Prior to this, the property owner had little defense against a spurious lien other than to post a costly bond. If filed, the lien claimant has a limited window within which to commence an action to perfect its lien. Failure of the lien claimant to meet this deadline may result in the lien becoming unenforceable.

Several changes to lien waiver forms and affidavits of non-payment have been enacted. Lien claimants should consult an attorney to assure that their current forms satisfy these new requirements, including certain mandatory notice requirements.

If a party files a bond to discharge a lien, notice and a copy of the bond must be sent to the lien claimant within 7 days after filing.

Considering that failure to follow these strict deadline and notice requirements may render a lien void, we suggest you speak with an attorney prior to filing a lien or filing an action to perfect a previously filed lien. Or, if you are the property owner, please consult with an attorney to know your rights before a lien adversely affects your property or delays your financing.

Smith Welch Webb & White serve clients throughout the south metro Atlanta area including but not limited to McDonough, Stockbridge, DeKalb County, Clayton County, Henry County, Peach County, Jonesboro, Spalding County, Butts County, and Lamar County.